The government needs a warrant based on probable cause to enter your house and search your cell phone, but what about when they collect 6 months of historical location data from your cell phone company? According to the Department of Justice: No warrant necessary.

During a March 3 House Oversight Committee hearing, the DOJ doubled down on this position and even refused to publicly release more information about how it’s interpreting a Supreme Court ruling on cell phone location tracking. ACLU Legislative Counsel Neema Guliani testified before the committee and made it clear that DOJ is out of touch with reality—and with the Supreme Court—calling on the committee to pass legislation requiring a probable cause warrant to obtain location information.

In U.S. v. Jones, the Court ruled that placing a GPS tracker on a suspect’s car and monitoring him for 28 days was a search under the Fourth Amendment. A majority of the justices said that long-term GPS monitoring of a car “impinges on expectations of privacy.”

But DOJ’s policy requires a probable cause warrant only when collecting cell phone location information in real-time, not historical data (even though in a least twoinstances revealed by an ACLU FOIA, real-time GPS data from a phone was collected without a warrant). The DOJ witness explained that, while historical data could contain private information, a lower standard to obtain it was acceptable under the department’s current policy—even when pressed by committee members who were understandably unable to see why one type of data was less invasive than the other. In her testimony Guliani argued that real-time and historical location data should be treated the same under the law, as both can reveal intimate details about a person’s daily life.

Throughout the hearing, DOJ also refused to commit to publicly releasing information on how it’s interpreting Jones. After a FOIA request by the ACLU, DOJ released two of its Jones memos, but they were almost entirelyredacted. Even the Oversight Committee itself called on DOJ at least four times to see the memos. During the hearing, Chairman Chaffetz announced that he and Ranking Member Cummings would finally be given access to read the memos — but would not even be permitted to take notes. Meanwhile the public and others members of Congress would continue to be left in the dark on this crucial question of how our government is applying the law.

DOJ’s position doesn’t match up with the reality of historical location tracking. Guliani’s testimony explained just why the government’s position is so problematic for privacy:

Location information is precise. Cell phones regularly communicate with cell towers in the area, and as tower technology advances and more towers are built, the ability to triangulate or otherwise log where a phone is over time is becoming increasingly precise — often at the level of a single block or house.

Location information is incredibly revealing. Over 90% of Americans have a cell phone, and about three-quarters are within about 5 feet of those phones most of time (and a little over 10% admit to even using them in the shower). This means that almost every American is generating data about their movements. Data that could reveal how many nights a person sleeps at their home each night, how often they visit a bar, HIV clinic, church, or AA meeting.

Location information is being routinely collected. In just 2015, AT&T received around 58,000 requests for historical cell phone location data from law enforcement. For example, there have been cases in Baltimore and Michigan where police collected over 6 months of location data without a probable cause warrant.

Some jurisdictions have recognized just how invasive historical location information can be, but there is little uniformity. Several states have passed laws requiring a probable cause warrant for all cell phone location information, and others have laws protecting real-time but not historical location information. But, the majority of states have no protections in place, and court rulings are inconsistent across jurisdictions.

And as if this all weren’t enough, DOJ’s guidance on Stingrays—devices that can trick all cell phones within range into connecting to them, allowing police to track movements in real-time—has significant gaps, as we have explained here.

It’s time for Congress to step in and protect location data. They can start by passing the Geolocation Privacy and Surveillance Act (H.R. 491), which would require probable cause warrants for all cell location data. In the meantime, DOJ must release a policy requiring a probable cause warrant for all location data and publicly release its Jones memos.

Cellphones are an integral part of American’s lives and can reveal incredibly intimate details about our daily lives. Our laws must reflect the importance of keeping that information private.

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Anonymous

Only one thing really works and it's perfectly legal: when members of Congress and the courts end up on the "receiving end" of these unconstitutional practices - it will be fixed at breakneck speed.

In the 1970's or 1980's, judges were only concerned about privacy and constitutional rights when some reporters found evidence that they visited adult book and movie stores. Judges were very concerned after being on the "receiving end".

That's what needed today, let's check out their "activity map" - everywhere they have visited every hour of the day for several months.

Anonymous

The Christian minister, Martin Luther King, Jr., was not a criminal. He opposed "illegal" laws and practices of some state and local governments. Those local and state governments are required, by law, to follow the U.S. Constitution within the guidelines set forth by the U.S. Supreme Court.

The U.S. Constitution is a crime-fighting tool used to "restrain" disloyal government officials that commit crimes against the U.S. Constitution like: stop & frisk searches, warrantless wiretapping, torture or punishing First Amendment exercises like freedom of speech or freedom of association.

Anyone that thinks the Constitution is just used to protect criminals, try writing your member of Congress and suggest term limits or publicly financed campaign reform - see what happens to you for your non-crime and non-wrongdoing!

March 9, 2016

4:49 PM

Anonymous

We need to publicly shine a light on the procedures of the federal judicial system. I believe the majority of the public does not understand the unchecked power that the DOJ is given. Without clear boundaries and rules that would protect the public, we are left to trust in the integrity of these individuals that hold positions at the DOJ. For example: 1. DOJ investigators can show up for questioning without notice to a person ( who is not necessarily the "target") to their place of employment. 2. DOJ investigators are not required to inform the person of their right to counsel before the interview. 3. DOJ investigators regularly lie to the person who they are questioning to intimidate to obtain information. 4. Doj investigators use threats to obtain information from unaware individuals who they are wanting information from. 5. The DOJ can unilaterally present a case before a grand jury without the person who is the "target" of their investigation ever being notified, and so, unable to defend themselves before the jury. The DOJ does not present to the jury the evidence for the defense. 6. The doj DOES NOT notify the person who is being investigated if they have found them, through their investigations, or grand jury process, to not be guilty. The person is left to wonder for up to 6 years if their life will be uprooted, and financially devastated at a moments notice. 7. The DOJ has been given statute of limitations (up to 6 years). For some crimes this is appropriate, while for others this is not a balance of power. 8. The DOJ leaders often use their position for personal, opportunistic, professional ladder climbing. There appears to be no real guide lines on which areas of crime that need attention and resourses first. The leaders are left to take on pet witch hunts, designed to make headlines for them. 9. The DOJ is given the right to investigate, indict through a grand jury, without the person they are accusing of the crime ever knowing or being notified in any form.

Anonymousinalabama

So many justified and worthwhile comments about national level concerns, but what about regional and local abuses of such?

There are some really small towns in America that have access to such with small town attitudes and prejudices. Local law enforcement with such powers can take your life apart in ways you can't imagine just because you are someone some dispatcher or policeman doesn't like. Maybe you're his ex-wife. Maybe they don't like what person you support for president. Maybe they're just bored and wanna have sadistic "fun" at someone else's expense.

Again, being able to access your current location or establish a history about you based on even noncurrent location data should NOT be available to anyone without a warrant, and somehow someone should be watching the watchers to hold them accountable for what they access. Absolute power corrupts absolutely.

November 17, 2016

6:46 PM

Shayna Amato

Thought-provoking comments . I was enlightened by the information , Does anyone know where I might access a blank IRS 4562 form to work with ?

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